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Matrix Absence Management is a nationwide company partnering with employers to provide custom management of Disability, Workers' Compensation, Leave of Absence and ADA programs. Matrix-Radar is our channel for sharing our thoughts and research on industry developments, legislative updates, and other topics of interest to partners and friends.

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Matrix is committed to keeping our clients and readers informed and in compliance. We will provide updates on meaningful changes – and how they may affect employers – as necessary. Please be aware, however, that these postings do not constitute legal advice. As always, you should consult your legal counsel for advice on the correct solution based on the facts of your specific issue or situation.

For more information on how to manage productivity in the face of this and other employee leave and accommodation issues, contact your Matrix Absence Management or Reliance Standard sales representative or account manager, or call 1-800-866-2301.

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By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

The state of New York has released much-needed guidance on the tax implications of employee premium contributions and benefits under the state’s new Paid Family Leave (PFL), slated to go into effect on January 1, 2018. According to the New York Department of Taxation and Finance:

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income.

Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding.

Benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers on Form 1099-MISC.

The Department released this guidance upon consideration of applicable state and federal laws and regulations, and after consultation with the federal Internal Revenue Service (IRS). The Department warns, however, that every employee, employer and insurance carrier should consult with its own tax advisor.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

On July 19, the New York Workers’ Compensation Board issued its final regulations in support of the state’s Paid Family Leave law (NY PFL), which requires employers to provide paid leave benefits to employees starting January 1, 2018. The final regulations follow a public comment period on the proposed rules issued on May 24, 2017. The Board received 58 comments and has also issued an Assessment of Public Comment on Revised Proposed Regulations which provides a summary of the comments receive and the Board’s response. Few substantive changes were made as a result of the comments, but the Assessment provides helpful clarifications on many provisions – even those for which it did not make any changes.

Here is a summary of the more noteworthy (or more interesting) changes and clarifications.

Coverage of employees outside the state of New York.

Several comments requested the Board to change the regulations so that employees who do not live and work in New York are not covered by NY PFL. The Board declined to make this change and clarified that an employee is entitled to NY PFL leave and benefits if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) lives in New York.

In addition, the Board received a request to amend the regulations to allow employers to include non-New York employees in their coverage under NY PFL . The Board pointed out it does not have authority to regulate employees or insurance outside the state of New York and declined to amend the regulations per this request.

Multiple or extended leaves under NY PFL and other programs.

The Board confirmed that an employee may be able to take leave in 2017 under company policies (or the FMLA) and then be entitled to leave and benefits under NY PFL for the same qualifying event in 2018. Examples:

An employee who receives a new child on August 1, 2017, could take bonding leave under company policies

(which may provide a pay benefit) and/or FMLA in 2017, then take up to 8 weeks of bonding leave under NY PFL any time from January 1 through July 31 in 2018.

An employee could take up to 12 weeks of FMLA leave in late 2017 to care for a covered family member

with a serious health condition, then take up to 8 weeks of leave starting January 1, 2018, to continue care for the same family member.

Fortunately, this anomaly will only occur for certain leaves in 2017 and 2018, and not for subsequent years.

Notice of payroll deductions to employees.

There is no requirement in either the statute or the regulations for employers to give notice to their employees of NY PFL payroll deductions. However, Matrix recommends that employers should, in fact, provide notice of the employees’ contributions and other aspects of NY PFL so that employees have the facts and appropriate expectations. Matrix has prepared a sample introductory communication to employees for consideration, and will work with clients to craft additional messaging in Q4 2017. Employers should consult with employment counsel to ensure employee communications are appropriate to the law as well as their own corporate policies and practice.

Military exigency leave.

NY PFL provides leave to care for several defined family members with a serious health condition, including the employee’s child, spouse, domestic partner, parent, grandchild, and grandparent. However, the Board has confirmed military exigency leave under NY PFL (which adopts the provisions of the FMLA for this leave) is NOT available for leave necessitated by the military service of a grandparent or grandchild.

Leave and benefits under both New York disability and paid family leave laws.

The Board received inquiry about an employee’s ability to receive both disability (DBL) and PFL benefits for the same birth of a child. The Board pointed out that the regulations clearly state an employee can collect both disability benefits and paid family leave in the post-partum period, but not at the same time. Thus, a new mother could receive disability benefits for some period of time following giving birth, and then take paid family leave within the one year period following the date of birth.

The Board did not address the possibility of using NY PFL for the week following birth during the 7-day waiting period for disability benefits, then switch to disability benefits followed with more paid family leave for bonding. There appears to be nothing in the statute or the regulations that would prohibit this, since NY PFL can be taken in increments of one day or more.

The NY disability and PFL laws limit an employee’s total benefits under both programs to 26 weeks in a 52-week period. The Board clarified that because the employee’s use of benefits is calculated retroactively backward from each day of usage, this will bridge the 52-week period back into year 2017 during 2018.

Employee waiver of NY PFL coverage and deductions.

NY PFL allows an employee who expects that his/her term of employment will be less than 26 weeks for employees working 20 hours per week or more (or 175 work days for employees working fewer than 20 hours per week) can elect to waive coverage and payroll deductions. In response to a request for clarification, the Board has amended the regulations such that employers MUST provide notice to employees of their right to waive coverage. The waiver must be in writing and if the employee’s term of employment exceeds 26 weeks or 175 work days, the employer must start payroll deductions and can collect back premiums from the employee. The regulations do not address how the employer is allowed to collect the back premiums, but other provisions make it unlikely that additional deductions from the employee’s paycheck would be permissible.

Employers will not be permitted to automatically waive PFL coverage for short-term workers. According to the Board, it is the employee’s election to make.

Notice to employee of completed pre-filed claim.

The draft regulations required carriers to provide employees who pre-filed a claim a confirmation of receipt of the completed claim within one business day. Due to objections about the practicality of processing and assessing a claim for completeness within one day, the regulations have been changed to allow a carrier or self-insured employer three business days to send the confirmation. The payment must still be made within 18 days of receipt of the complete claim.

Inconsistency between carrier’s and employer’s determination of NY PFL benefits and leave rights.

The Board received a comment recognizing that “there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied.” I’m quoting here because I’m not sure how else to explain this issue: The Board’s less-than-satisfactory response is, “Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.” The Board did not address the question whether the employer would be acting properly if it chooses to use the carrier’s benefits determination as a proxy for the leave determination, thus eliminating the possibility of such inconsistency.

Rights of employees with more than one job.

An employee working simultaneously for more than one New York employer will have NY PFL contributions deducted from their pay from each employer. The Board confirmed that yes, an employee can take NY PFL leave and receive benefits from multiple employers at the same time for the same leave reason. The Board acknowledged that this might result in the employee receiving total benefits in excess of the statutory cap available from employment with a single employer. However, the Board confirmed that the total number of weeks of NY PFL leave and benefits available to an employee in a 52-week period is still subject to the 8-week limit in 2018 (increasing to 12 weeks by 2021).

WHAT IS MATRIX DOING NOW?

Whew! That is about all I can bring to light in the 24-ish hours since the final regulations were published. But we are FAR FROM DONE!

In June Matrix presented webinars, FAQs, and other materials to help employers and brokers understand and prepare for New York Paid Family Leave. Over the coming days and weeks, we will use the final regulations and comments to update all materials, and develop additional ones as warranted. In August we will host another round of webinars.

In the meantime you can always learn more about the law as follows:

Check out these prior blog posts (but remember some information has changed due to revisions to the

Ask a question OR sign up for our NY PFL Tip-Of-The-Week by emailing nypfl@rsli.com.

MATRIX CAN HELP! Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The New York Paid Family Leave act goes into effect on January 1, 2018. This law provides both job protection similar to the FMLA, and also provides a pay benefit to employees during covered leaves of absence. Now, New York Governor Cuomo has announced that the proposed regulations in support of the law have been published in the State Register and are open for public comment for 45 days. Links to the text of the proposed regulations and related materials can be found on the New York State website here.

The law phases in from 2018 through 2021. Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021. Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member. A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here and in the state’s announcement of the proposed regulations.

The state has also created a new helpline (844) 337-6303 and a new website to answer questions and provide more information about the paid leave program.

Part of a Trend

Three other states – California, New Jersey, and Rhode Island – also have state programs for paid family leave, and Washington, D.C., has passed such a program to go into effect in 2020 (subject to review by the U.S. House and Senate). These states and also Hawaii, New York, and Puerto Rico offer separate programs for disability insurance for an employee’s own health condition.

But that’s not all! As of February 28, the following 10 states have also introduced legislation for paid family leave: Connecticut, Hawaii, Illinois, Missouri, Oklahoma, Oregon, South Dakota, Tennessee, Texas, and Virginia (died in committee within 3 weeks of proposal – that was quick!). Some of these also include pay benefits for leave due to the employee’s own health condition. In addition, the state of Washington passed paid family leave legislation in 2007 but it never went into effect due to lack of funding. Washington has introduced new bills this year to provide that funding and implement its paid leave law.

Matrix and Reliance Standard Can Help!

At Matrix we have been waiting for this development. We will closely review the proposed regulations, inform our clients, business partners, and readers of any significant provisions, and submit comments to the state if appropriate. We’ll do the same when the regulations – as is or revised – become final.

In the meantime, Matrix’s compliance and product leaders are guiding a team with representatives from all affected functional areas in preparing to administer the job-protected leave provisions of the law effective January 1, 2018. Our sister company, Reliance Standard Life Insurance Company, has likewise assembled a team of representatives from all functional areas to design the product offering. In order to be ready by the effective date, Reliance Standard has already created system requirements and is preparing to start development.

Section 380-7.2.e. of the New York Paid Family Leave law requires employers to post a notice to employees of their rights under the law:

Every covered employer must display or post, and keep posted, a typewritten or printed notice concerning PFL in a form prescribed by the Chair.The notice must be displayed in plain view where all employees and/or applicants can readily see it.

The state has now issued form PFL-120 for employers to use for this purpose.It can be obtained by sending an email to certificates@wcb.ny.gov.

They’re out! The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE! I have reviewed the forms quickly but there is much to absorb and ponder. Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?

As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons: to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty. Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years. Similarly, the pay benefit starts at 50% and caps at 67% in 2021. The benefit is funded by employee payroll contributions.

Watch this blog for further analysis down the road. In the meantime, we want to share some basics. Here are the new forms that have been released, and a few notes:

Applying for Paid Family Leave. New York has provided this “cover page” to accompany each certification form. It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.

Request for Paid Family Leave (Form PFL-1). This form is not posted as a stand-alone document. Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link. The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.

Bonding Certification (Form PFL-2). This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.

Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI). Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave. As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.

Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4). Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition. The form requires the provider to identify his/her credentials and specialty. The form is 2 pages and the instructions are 1 page.

Military Qualifying Event (Form PFL-5). Not much to say about this simple form.It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation. A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.

Early Observations – Some Concerns. As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas. For example:

Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
family member has a serious health condition.

Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
paid. A challenge to verify proper usage, to say the least.

The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
a problem in getting forms properly completed and the correct information provided to the correct party.
For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
to the insurance carrier, but not to the self-funded employer. While this can be corrected by including the employer’s
name instead of the carrier’s name, we question how many times this will be done correctly on the
first go-round. Can you say “delay”?

Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018. This is a natural extension of our leave, disability, and accommodation management services for employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.